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Between the Locked Prison Gates and the Locked Courthouse Gates: HCJ 4128/09 Zaghal v. Israel Prison Service Commissioner (Judgment of December 12, 2009)
Court Watch | 4127/09 | 30.12.2009 | Adv. Yossi Wolfson
One of the things that mark a democracy as one is that an individual who is injured by a decision of a state authority is entitled to turn to the courts to have them review the decision. This is not always the case when it comes to Israel's Supreme Court.

In the Zaghal case, the Supreme Court established a category of civilians who cannot turn to any court for a remedy against a certain category of administrative decisions

The Israeli Supreme Court has earned a reputation for its liberal approach to the issue of legal standing. Individuals and public organizations turn to it and raise general issues and issues of principle and the court hears and rules, even when the petitioner himself was never personally hurt by the authority’s decision. In fact, this is the case also when it is difficult to point (other than artificially) to anyone’s human right having been violated. It may be that these general, principled deliberations have made the court forget that its main role is to perform judicial review of individual decisions by the authorities in petitions made by civilians harmed by those decisions.

In the Zaghal case, the Supreme Court, in the words of its president, Justice Dorit Beinisch, established a category of civilians who cannot turn to any court for a remedy against a certain category of administrative decisions. The decision was made in the context of a regulation which determines that anyone who was incarcerated in a prison run by the Israel Prison Service (IPS) may not, after his release, enter IPS prisons to visit prisoners. The ban is sweeping and applies to all former prisoners irrespective of the duration of incarceration, the length of time that elapsed since their release or the reasons for incarceration (detention for the purpose of interrogation, detention until end of proceedings, imprisonment or civil imprisonment). However, the regulation allows ex-prisoners to file a request to visit an inmate and the IPS is to review and decide on such requests. On the face of it, the regulation is arbitrary and unreasonable, and indeed, a petition has been filed against it. This petition recently resulted in the setting of protocols for handling applications by former inmates,[1] protocols which establish, inter alia, application-processing times and the considerations and criteria according to which applications are to be reviewed. HaMoked: Center for the Defence of the Individual provides assistance to residents of the Occupied Palestinian Territories (including East Jerusalem) in these proceedings and when the authorities do not bother to respond in a timely fashion or when the response is negative, the required measure is a petition to the High Court of Justice. This is what happened in the Zaghal case.

The petition was heard by Justices Beinisch, Naor and Hayut who decided that other than in exceptional circumstances, the Supreme Court would no longer review petitions of this sort – petitions by ex-prisoners seeking to visit acquaintances or relatives in prison.

There would have been no difficulty had the justices ruled that a court other than the Supreme Court would review such petitions, for example the district courts which are empowered to review certain matters as courts for administrative affairs. The trouble is that the district courts’ jurisdiction over administrative affairs is determined by law. It includes petitions by prisoners but by ex-prisoners. Petitions made by ex-prisoners to visit prisons do not come under any of the other jurisdictions defined for district courts. Therefore, the justices did not rule that another court had jurisdiction to review the petitions. They did not creatively interpret the powers of the district courts in order to transfer the petitions to them. They did not transfer the petitions to the district courts by way of judicial legislation. They did not even suggest the law be amended such that petitions of this sort would in future come under the jurisdiction of the district courts. They simply ruled that, in the absence of special circumstances, the petitions would not be reviewed by any judicial instance.

The solution the justices offered the ex-prisoners was that the prisoners whom they wish to visit file the petitions. Prisoners may turn to the district courts with prisoner’s petitions. Thus, the visitor, who cannot see the prisoner (and when the latter is labeled a security prisoner, telephone communications are also generally prohibited), is supposed to somehow contact the prisoner and ask him to approach the IPS so that it would allow the visit. The ex-prisoner is also somehow supposed to provide the prisoner with all the details pertaining to the matter – such as when he was imprisoned, the reasons for the imprisonment etc. The prisoner is also expected to confront the state’s claims regarding the security risk posed by the ex-prisoner’s visit and try to refute them in court (without having seen the ex-prisoner seeking to visit).

The justices’ reasons for closing the doors of the court to ex-prisoners is no better than the practical solution they offered. In their view, the interested party with regards to visits is the prisoner – rather than the visitor – and “in general, the cause raised by the ‘visitor’ is weaker than that of the prisoner who is interested in the visits”.[2]

The right to access the courts is one of the most basic human rights. Even the Israeli court, more than once  and using impressive rhetoric, acknowledged this right, whose safeguarding is the only guarantee for the protection of all other human rights

It is somewhat intuitive to claim that the visit is more meaningful for the prisoner than the visitor: for the prisoners, visits provide an almost singular connection to the family and the community that lie beyond the prison walls. However, even the justices themselves do not venture as far as saying that the visitor himself has no personal interest in the visit. Is a person who wishes to visit his or her spouse in prison bereft of an independent right to the visit? Is a person wishing to visit his imprisoned daughter bereft of an independent right to the visit? A person wishing to visit an acquaintance, business partner, childhood friend, neighbor – is he bereft of an independent right to the visit? If these rights are “weaker” than those of the prisoner himself, it is only because the prisoner’s right to visits is a very powerful one. Incidentally, some of these individuals, wishing to visit, will be unable to do so even if they are not ex-prisoners, simply because of the narrow criteria applied to visiting security prisoners.

Interestingly, on the day the Zaghal ruling was handed down, one of the justices on the bench signed another judgment dealing with prison visits: in that case, it was petitions seeking to renew prison visits from the Gaza Strip.[3] Israel put an end to these visits in the summer of 2007. They were previously conducted via secure shuttles run by the International Committee of the Red Cross. Those most hurt were prisoners from the Gaza Strip who are held in Israeli prisons and their families. Whereas in the Zaghal matter, Justice Hayut concurred with the opinion that the right of visitors is at most a weak right and the real interested party is the prisoners, in the matter of visits from Gaza, she ruled that the injury to the prisoners is merely incidental and the main issue was whether the visitors had a right to enter the State of Israel to visit their incarcerated loved ones. However, the question we are dealing with is not how consistent Supreme Court justices’ are but rather their being subject to the fundamental principle of the right of access to the courts.

Stronger or weaker, anyone who has a cause of action is entitled to turn to the courts to see it through. Such individuals are entitled to do so personally and not vicariously through other individuals, even when such submissions are practically possible. The right to access the courts is one of the most basic human rights. Even the Israeli court, more than once and using impressive rhetoric, acknowledged this right, whose safeguarding is the only guarantee for the protection of all other human rights. In the Zaghal case, the court betrayed its duty to allow any person harmed by an authority access to a judicial instance in order to challenge the authority’s decision. Former prisoners wishing to visit their incarcerated loved ones will remain without relief between the locked gates of the prison and the locked gates of the court.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.

HCJ 5154/06 HaMoked: Center for the Defence of the Individual v. Minister of Public Security (2009), judgment of March 12, 2009 (in Hebrew).
HCJ 4127/09 Zaghal v Israel Prison Service Commissioner (2009), judgment of December 9, 2009, para. 3.
HCJ 5268/08 Anbar v. GOC Southern Command (2009), judgment of December 9, 2009. (02) 627 1698   (02) 627 6317

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